Citation Nr: 0842848
Decision Date: 12/12/08 Archive Date: 12/17/08
DOCKET NO. 06-21 767 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUES
1. Entitlement to service connection for bilateral carpal
tunnel syndrome.
2. Entitlement to service connection for a skin disorder of
the veteran's feet.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans'
Affairs
ATTORNEY FOR THE BOARD
J.G. Reinhart, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1959 to July
1966.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a November 2004 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio. Jurisdiction is currently with the RO in
Phoenix, Arizona.
In the November 2004 rating decision, the RO also denied
claims for service connection for hearing loss, tinnitus, a
back disorder, a wrist disorder (other than carpal tunnel
syndrome), headaches, and an eye disorder. The veteran did
not initiate an appeal to the Board of the denial of service
connection for an eye disorder and that issue is not before
the Board. See 38 U.S.C.A. § 7105. In a rating decision
dated in September 2008, the RO granted service-connection
for tinnitus, thus satisfying that appeal. See Grantham v.
Brown, 114 F.3d. 1156 (Fed. Cir. 1997).
In a written statement dated in June 2008, the veteran
withdrew his appeal as to the issues of service connection
for headaches, a back disorder, and a wrist disorder other
than carpel tunnel syndrome. 38 C.F.R. § 20.204. Similarly,
in a written statement dated in October 2008, the veteran
withdrew his appeal as to the issue of service connection for
bilateral hearing loss. Id. Based on these events, the only
issues before the Board are entitlement to service connection
for a skin disorder of the veteran's feet and for carpal
tunnel syndrome.
FINDINGS OF FACT
1. Bilateral carpal tunnel syndrome did not have onset
during active service and is not otherwise related to the
veteran's active service.
2. A skin disease of the feet did not have onset during the
veteran's active service and is not otherwise related to the
veteran's active service.
CONCLUSIONS OF LAW
1. The criteria for service connection for carpal tunnel
syndrome of either upper extremity have not been met. 38
U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002 & Supp.
2007); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2008).
2. The criteria for service connection for a skin disease of
the veteran's feet have not been met. 38 U.S.C.A. §§ 1110,
1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran contends that service connection is warranted for
carpal tunnel syndrome. In his June 2006 substantive appeal,
he reported that he sought treatment for carpal tunnel
syndrome at the Luke Air Force Base dispensary and was told
that this was an occupational hazard. He also reported that
has used braces for his wrists and quit one job involving
spray painting because of the repetitive nature of the work.
He reported that he still has carpal tunnel syndrome, as
evidenced by records from Dr. "J.C."
Similarly, the veteran contends that service connection for a
skin condition of his feet is warranted. In his substantive
appeal, he reported that he incurred jungle rot while
stationed for three years in Japan. He also reported that he
was treated for this condition at the Yokota Japan Tachikawa
Air Force Base.
Service connection may be granted for a disability resulting
from a disease or injury incurred in or aggravated by
service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38
C.F.R. § 3.303(a) (2007). In general, service connection
requires (1) medical evidence of a current disability; (2)
medical, or in certain circumstances, lay evidence of in-
service incurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between the claimed in-
service disease or injury and the current disability. See
Hickson v. West, 12 Vet. App. 247, 253 (1999).
Certain chronic diseases, including organic diseases of the
nervous system and arthritis, may be presumed to have been
incurred in or aggravated by service if manifest to a
compensable degree within one year of discharge from service.
See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2007); 38
C.F.R. §§ 3.307, 3.309 (2008).
Service treatment records are absent for any reports of
symptoms of the veteran's wrists or hands, any mention of
carpal tunnel syndrome, or any reports of symptoms involving
the veteran's skin. A discharge report of medical
examination, dated in May 1966, indicates a normal clinical
evaluation of the veteran's feet, skin, lower extremities,
upper extremities, and of his musculoskeletal system.
Importantly, in an associated report of medical history,
signed by the veteran, the veteran indicated that he did not
then have, nor had ever had, swollen or painful joints; bone,
joint or other deformity; foot trouble, or skin disease.
These service medical records are strong evidence that the
veteran did not have any symptoms of his wrists or hands or
any symptoms of skin disease during service. The Board finds
these contemporaneously created records more probative of
whether the veteran suffered from carpal tunnel syndrome or
skin disease, or was treated for such, during service, than
the veteran's reports made for the first time some thirty-
eight years after separation from service. See Curry v.
Brown, 7 Vet. App. 59 (1994) (contemporaneous evidence has
greater probative value than history as reported by the
veteran).
The only objective evidence of record that the veteran has
ever suffered from carpal tunnel syndrome is an August 1999
clinical note signed by J.C., M.D. This note states that the
veteran presented with pain, numbness, and tingling that
seemed to radiate down the right hand into the right thumb
and third fingers. Dr. J.C. wrote "He does construction,
carpentry for several years. Does a lot of glazing (kitchens
and bathrooms)." Dr. J.C. stated that the veteran had
positive 'tennel' of the right wrist and that he was a little
tender in the right epicondyle. The treatment plan was for
wrist splints and one 50/200 tablet daily of Arthrotec for
ten days, and that if symptoms did not improve, a
recommendation for nerve conduction studies and possible
surgical correction. Dr. J.C. made no mention of the
veteran's service and his mention of the veteran's carpentry
and glazing work is evidence that, if anything, Dr. J.C.
considered these activities to be related to the veteran's
symptoms, providing limited evidence against this claim.
Dr. J.C.'s notes are evidence only that the veteran had
symptoms involving his right wrist and hand in August 1999.
This is prior to the time period of his claim, filed in June
2004, and therefore not evidence of a current disability.
See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (
explaining that the requirement of a current disability is
satisfied so long as the veteran has the claimed disability
at some time beginning with the date of his claim and through
the pendency of his claim).
The record is absent for any objective evidence of skin
disease, any reports of treatment for skin disease, any
reports of symptoms of skin disease, or any diagnosis of skin
disease. Only the veteran's own assertions stand as evidence
that he has a skin disease. In this regard, the veteran has
simply stated that he was treated for 'jungle rot' during
service, an assertion contradicted by the service treatment
records. His own report in his substantive appeal that "I
may go to VAMC when this condition arises again" is some
evidence that he does not currently have symptoms of a skin
disease of his feet.
Furthermore, the veteran's lay opinion that he has a chronic
skin disease, or for that matter, carpal tunnel syndrome, is
not competent evidence. With respect to the veteran's own
contentions, a layperson is generally not capable of opining
on matters requiring medical knowledge. Routen v. Brown,
10 Vet. App. 183, 186 (1997). See also Bostain v. West,
11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski,
2 Vet. App. 492 (1992) (a layperson without the appropriate
medical training and expertise is not competent to provide a
probative opinion on a medical matter, to include a diagnosis
of a specific disability and a determination of the origins
of a specific disorder).
Some conditions, those that have readily identifiable and
unique features such as varicose veins, are subject to lay
diagnosis through observation. See Barr v. Nicholson, 21
Vet. App. 303 (2007). However, other conditions, such as
bronchial asthma are not so simple or readily identifiable to
be subject to lay observation. See Layno v. Brown, 6 Vet.
App. 465, 470 (1994). Carpal tunnel syndrome clearly falls
into the latter category because, as Dr. J.C. noted, certain
medical diagnostic tests would be necessary as the next step
in addressing the veteran's symptoms. As such tests are part
of the medical process for evaluating these symptoms, the
veteran is clearly not competent to render an opinion as to
whether he has this condition.
As to the veteran's self reported skin disease of his feet,
he is certainly competent to report observable symptoms of a
skin disease. Layno v. Brown, 6 Vet. App. 465 (1994). To
the extent that a skin disease is characterized by readily
identifiable and unique features, a report of those features
may be sufficient to identify a current disability. However,
the veteran has not reported any such unique features. In
his June 2006 substantive appeal and in his May 2005 notice
of disagreement, the veteran provided more or less the same
information. For example, in his notice of disagreement, he
stated:
I incurred Jungle Rot when I was in Japan
for 3 years. I was at Yakota where it
was hot and humid all the time. There
was fungus even in the barracks. Our
shoes would be covered with fungus and we
had a terrible time keeping our footwear
and feet dry.
This is not a description of symptoms of skin disease, but
merely a statement that the veteran had wet feet, hardly a
unique feature of a skin disease. This therefore is not
evidence of symptoms of skin disease of the feet or a
"diagnosis" of skin disease of the feet.
In short, the record is absent for any competent evidence
that the veteran has carpal tunnel syndrome for any period of
time prior to the filing of his appeal in June 2004 or prior
to August 1999, or that he has ever had skin disease of his
feet. McClain v. Nicholson, 21 Vet. App. 319 (2007); Gilpin
v. West, 155 F. 3d 1353 (Fed. Cir. 1998); Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992).
Even assuming, without deciding, that the veteran is capable
of identifying "jungle rot" of his feet, the absence of any
earlier instance of these symptoms during service or since
service, is itself evidence, that in this case outweighs his
reports of earlier occurrences, first made so recently. See
Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom.
Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002)
(the definition of evidence encompasses "negative evidence"
which tends to disprove the existence of an alleged fact,
i.e., the lack of evidence is itself evidence).
The service treatment records and post service treatment
records, including the absence of symptoms of the claimed
disabilities in those records, outweighs the veteran's
assertions regarding his claimed disabilities and onset of
such during service or other relationship to service.
Because there is no evidence of that these conditions
manifested within one year of separation from service, the
presumptive provisions for chronic diseases are not for
application. Hence, the appeal as to both issues must be
denied. The evidence in this case is not so evenly balanced
so as to allow application of the benefit-of- the-doubt rule.
Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. §
5107(b); 38 C.F.R. § 3.102 (2008).
Duties to notify and assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper notice from VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide.
38 C.F.R. § 3.159(b)(1). This notice must be provided prior
to an initial unfavorable decision on a claim by the RO.
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006);
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S.
Court of Appeals for Veterans Claims held that, upon receipt
of an application for a service-connection claim, 38 U.S.C.
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating, or is necessary to substantiate, each of the
five elements of the claim, including notice of what is
required to establish service connection and that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
In this case, although the notice provided did not address
either the rating criteria or effective date provisions that
are pertinent to the veteran's claim, such error was harmless
given that service connection is being denied, and hence no
rating or effective date will be assigned with respect to
this claimed condition.
The remaining VCAA duty to notify was satisfied by way of a
letter sent to the veteran in August 2004 that fully
addressed all three notice elements and was sent prior to the
initial RO decision in this matter. The letter informed the
veteran of what evidence was required to substantiate the
claims and of his and VA's respective duties for obtaining
evidence.
VA has a duty to assist the veteran in the development of the
claim. This duty includes assisting the veteran in the
procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
In determining whether the duty to assist requires that a VA
medical examination be provided or medical opinion obtained
with respect to a veteran's claim for benefits, there are
four factors for consideration. These four factors are:
(1) whether there is competent evidence of a current
disability or persistent or recurrent symptoms of a
disability; (2) whether there is evidence establishing that
an event, injury, or disease occurred in service, or evidence
establishing certain diseases manifesting during an
applicable presumption period; (3) whether there is an
indication that the disability or symptoms may be associated
with the veteran's service or with another service-connected
disability; and (4) whether there otherwise is sufficient
competent medical evidence of record to make a decision on
the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).
With respect to the third factor above, the Court has stated
that this element establishes a low threshold and requires
only that the evidence "indicates" that there "may" be a
nexus between the current disability or symptoms and the
veteran's service. The types of evidence that "indicate"
that a current disability "may be associated" with military
service include, but are not limited to, medical evidence
that suggests a nexus but is too equivocal or lacking in
specificity to support a decision on the merits, or credible
evidence of continuity of symptomatology such as pain or
other symptoms capable of lay observation. McLendon v.
Nicholson, 20 Vet. App. 79 (2006).
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the veteran. See Bernard v. Brown, 4
Vet. App. 384 (1993). The RO has assisted the veteran in
obtaining private treatment records from "J.C.", M.D.
Neither the veteran nor his representative has identified any
other relevant evidence.
VA did not afford the veteran a medical examination or obtain
a medical opinion as to the issues on appeal. There is no
indication of an inservice event, disease, injury, or symptom
involving the veteran's hands or wrists or the skin of his
feet. There is no indication of manifestation of these
conditions within any applicable presumptive period. Nor is
there any objective evidence that he has currently has a skin
disease or carpal tunnel syndrome, or that any symptoms,
including those reported by Dr. J.C. in August 1999, are
related to his service. For these reasons the Board has no
duty to afford the veteran a medical examination or obtain a
medical opinion.
Significantly, neither the appellant nor his representative
has identified, and the record does not otherwise indicate,
any additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained. Hence,
no further notice or assistance to the veteran is required to
fulfill VA's duty to assist the appellant in the development
of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd
281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15
Vet. App. 143 (2001); see also Quartuccio v. Principi, 16
Vet. App. 183 (2002).
ORDER
The appeal is denied.
____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs